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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DANIEL LEE MONK, 

 CASE NO. 2:12-CV-894 

 Petitioner, JUDGE MICHAEL H. WATSON 

 Magistrate Judge Kemp 

 v. 

NORM ROBINSON, WARDEN, 

 Respondent. 

REPORT AND RECOMMENDATOIN 

 Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus 

pursuant to 28 U.S.C. §2254. The issues have been presented to the Court by way of the 

petition and memorandum in support, Respondent’s Return of Writ, and the exhibits of 

the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this 

action be DISMISSED. 

I. FACTS and PROCEDURAL HISTORY 

 The Ohio Fifth District Court of Appeals summarized the facts and procedural 

history of this case as follows: 

Appellant was indicted on two counts of sexual battery and 

one count of contributing to the delinquency of a minor. On 

November 8, 2010, Appellant entered an initial plea of not 

guilty by reason of insanity. The trial court ordered a 

competency evaluation, and a hearing was scheduled for 

December 14, 2010. At Appellant's request, the hearing was 

then continued to January 3, 2011. 

On January 3, 2011, Appellant moved the trial court to 

continue the trial set for January 5, 2011. Appellant also filed 

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a motion to suppress on the same date. The trial court 

denied the motions. 

On January 4, 2011, Appellant retained new counsel. On 

January 5, 2011, the date scheduled for trial, Appellant's new 

trial counsel moved the trial court to continue the jury trial. 

The trial court denied the motion. Appellant then entered a 

plea of no contest to the charges. 

On February 16, 2011, the trial court sentenced Appellant to 

three years incarceration on each count of sexual battery to 

run consecutively with a six month term on the one count of 

contributing to the delinquency of a minor charge, for an 

aggregate prison term of six years. 

Appellant now appeals, assigning as error: 

“I. WHETHER OR NOT THE TRIAL COURT ABUSED ITS 

DISCRETION BY DENYING THE APPELLANT'S MOTION 

TO SUPPRESS AS UNTIMELY. 

“II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS 

DISCRETION BY DENYING THE APPELLANT'S 

MOTIONS FOR CONTINUANCE. 

“III. WHETHER OR NOT PREVIOUS COUNSEL WAS 

INEFFECTIVE BY FAILING TO FILE A MOTION TO 

SUPPRESS. 

“IV. WHETHER OR NOT THE TRIAL COURT'S 

IMPOSITION OF SENTENCE WAS CONTRARY TO LAW 

DUE TO THE LACK OF THE TRIAL COURT'S 

CONSIDERATION OF THE OVERRIDING PURPOSES 

AND FACTORS TO BE CONSIDERED IN FELONY 

SENTENCING.” 

State v. Monk, No. 11-CA-28, 2011 WL 5352379, at *1 (Ohio App. 5th Dist. Nov. 4, 2011). 

On November 4, 2011, the appellate court affirmed Petitioner’s convictions and 

sentence. Id. Petitioner did not file a timely appeal to the Ohio Supreme Court. On 

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March 27, 2012, he filed a motion for delayed appeal. Exhibits 21, 22 to Return of Writ. 

On May 9, 2012, the Ohio Supreme Court denied Petitioner’s motion for delayed 

appeal. State v. Monk, 131 Ohio St.3d 1538 (2012). 

 Additionally, Petitioner indicates that on June 12, 2012 he filed, in the trial court, 

a request for sentence reduction, alleging he was denied due process, equal protection, 

and sentenced in violation of the Double Jeopardy Clause. According to the petition, 

the trial court denied his motion for filing under the wrong case number. See Petition, 

PageID #6. 

 On September 27, 2012, Petitioner filed the instant pro se petition for a writ of 

habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the 

Respondent in violation of the Constitution of the United States based upon the 

following grounds: 

1. The unconstitutionality of Foster and first-time offender 

statutes of Ohio. 

2. I have never served a prison term prior to this or any 

other felony or misdemeanor. 

In his memorandum in support of the petition, Petitioner additionally argues he was 

denied a fair trial due to judicial bias and prosecutorial misconduct, denied effective 

assistance of counsel, and sentenced in violation of the Double Jeopardy Clause. It is 

the position of the Respondent that Petitioner’s claims are procedurally defaulted. 

II. PROCEDURAL DEFAULT 

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In recognition of the equal obligation of the state courts to protect the 

constitutional rights of criminal defendants, and in order to prevent needless friction 

between the state and federal courts, a state criminal defendant with federal 

constitutional claims is required fairly to present those claims to the highest court of the 

state for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue 

open to him by which he may present the claims, his petition is subject to dismissal for 

failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam; 

Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a procedural default, the 

petitioner can no longer present his claims to a state court, he has also waived them for 

purposes of federal habeas review unless he can demonstrate cause for the procedural 

default and actual prejudice resulting from the alleged constitutional error. Murray v. 

Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. 

Sykes, 433 U.S. 72, 87 (1977). 

In the Sixth Circuit, a four-part analysis must be undertaken when the state 

argues that a federal habeas claim is precluded by the petitioner's failure to observe a 

state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court 

must determine that there is a state procedural rule that is applicable to the petitioner's 

claim and that the petitioner failed to comply with the rule.” Id. Second, the court must 

determine whether the state courts actually enforced the state procedural sanction. Id. 

Third, it must be decided whether the state procedural forfeiture is an adequate and 

independent state ground on which the state can rely to foreclose review of a federal 

constitutional claim. Id. Finally, if the court has determined that a state procedural rule 

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was not complied with and that the rule was an adequate and independent state 

ground, then the petitioner is required to demonstrate that there was cause for him not 

to follow the procedural rule and that he was actually prejudiced by the alleged 

constitutional error. Id. This “cause and prejudice” analysis also applies to failure to 

raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 

(6th Cir. 1985). 

 Petitioner asserts he was unconstitutionally sentenced, denied effective 

assistance of counsel, and denied a fair trial due to judicial bias and prosecutorial 

misconduct. These claims either have never been presented to the state courts, or were 

raised on direct appeal but never timely presented to the Ohio Supreme Court. 

Although Petitioner filed a motion for delayed appeal, the Ohio Supreme Court denied 

his motion. The United States Court of Appeals for the Sixth Circuit has held that the 

Ohio Supreme Court’s denial of a motion for delayed appeal constitutes a procedural 

default of the claims raised therein. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). 

As to those claims which should have been raised on direct appeal, but were not, 

Petitioner may now no longer present such claims to the state courts under Ohio’s 

doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio 

St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). 

Ohio's res judicata rule is adequate and independent under the third part of the 

Maupin test. To be “independent,” the procedural rule at issue, as well as the state 

court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 

501 U.S. 722, 732–33 (1991). To be “adequate,” the state procedural rule must be firmly 

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established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 

(1991). “[O]nly a ‘firmly established and regularly followed state practice’ may be 

interposed by a State to prevent subsequent review by this Court of a federal 

constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348–351 (1984)); 

see also Barr v. City of Columbia, 378 U.S. 146, 149, (1964); NAACP v. Alabama ex rel. 

Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. 

Ohio 1998). 

The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the 

Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 

440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); 

Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 

(6th Cir. 000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have 

consistently refused, in reliance on the doctrine of res judicata, to review the merits of 

claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. 

Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the state's 

interest in finality and in ensuring that claims are adjudicated at the earliest possible 

opportunity. With respect to the independence prong, the Court concludes that res 

judicata does not rely on or otherwise implicate federal law. Accordingly, this Court is 

satisfied from its own review of relevant case law that the Perry rule is an adequate and 

independent ground for denying relief. 

Accordingly, this Court concludes that Petitioner has waived all of the grounds 

he now presents for federal habeas corpus relief. Moreover, Petitioner has not offered 

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any cause and prejudice analysis which might excuse the default, nor has he argued 

that he had made a substantial showing of actual innocence sufficient to excuse any 

procedural default. See Murray v. Carrier, 477 U.S. at 491; Sawyer v. Whitley, 505 U.S. 333 

(1992). 

 III. RECOMMENDATION 

For these reasons, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

 IV. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within 

fourteen days of the date of this Report, file and serve on all parties written objections to 

those specific proposed findings or recommendations to which objection is made, 

together with supporting authority for the objection(s). A judge of this Court shall make 

a de novo determination of those portions of the report or specified proposed findings 

or recommendations to which objection is made. Upon proper objections, a judge of this 

Court may accept, reject, or modify, in whole or in part, the findings or 

recommendations made herein, may receive further evidence or may recommit this 

matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the 

Report and Recommendation de novo, and also operates as a waiver of the right to appeal 

the decision of the District Court adopting the Report and Recommendation. See Thomas v. 

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

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The parties are further advised that, if they intend to file an appeal of any 

adverse decision, they may submit arguments in any objections filed, regarding 

whether a certificate of appealability should issue. 

 /s/ Terence P. Kemp

 United States Magistrate Judge 

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